PROGRAM OPERATIONS MANUAL SYSTEMPart DI – Disability InsuranceChapter 521 – Workers' Compensation/Public Disability Benefit (WC/PDB) OffsetSubchapter 20 – State Specific Workers' Compensation (WC) ProceduresTransmittal No. 38, 05/01/2020
We received a legal opinion from the NY region Office of General Council on NY State Third Party Settlements, equitable distribution of third party settlement fees, and Burn rates. We are now adding Burns payments to the subject POMS.
Summary of Changes
DI 52120.175 New York Workers' Compensation (WC)
Subsection A. Types of WC payments
Added A.6. Burns payments - added an introductory paragraph to provide background/explanation of Burns payments.
New policy provided on Burns Payments.
The New York State Workers' Compensation Board administers their WC. WC insurance may be provided through a competitive State fund (the State Insurance Fund, SIF), a private insurance carrier, or employers may self-insure.
WC ‘pay periods’ are 2 weeks long. The WC benefit rate a worker receives is determined by the date of injury, and it does not increase when new maximum limits are adopted. Cases are limited by the current weekly maximum amount, which applies to the total
of all outstanding ‘cases’ (claims)-- not each individual case -- so an injured worker never receives more than the State maximum per week, regardless of how many claims he has. However, the NY state maximum can be exceeded when there are also Section 32 settlements and SLU (Schedule Loss of Use) awards which are not paid as periodic payments, but treated as such for the purpose of WC offset. For example, if a claimant receives the NY State maximum on one case in periodic payments and is then awarded a S32 settlement on another WC case, the NY State maximum can be exceeded.
EXCEPTION: If Longshore & Harbor Workers’ Compensation Act (LHWCA) is paid through the State as NY WC, the State maximum may be exceeded. For more information on LHWCA, see DI 52115.005.
NOTE: NY’s types of WC are named differently than normal. What NY refers to
as ‘partial temporary disability’ or ‘PT’ WC is what SSA calls ‘temporary
partial’ (TP). Because of this, be careful in using abbreviations in your
This is based on two-thirds of the worker’s average weekly wage not to exceed the maximum rate established at the time of the accident. It is paid for the duration of the disability.
NOTE: Do not confuse TT WC with Temporary Disability benefits, which are
State public disability benefits (PDB). For information on NY PDB benefits, see DI 52135.175.
This is paid when the injured worker returns to work at a lower wage. It is paid at 2/3 of the difference between the worker’s wages before and after his injury.
The weekly rate for 100 percent disability is calculated at 2/3 of the worker’s average weekly wage not to exceed the maximum rate established at the time of the accident. It is paid for the duration of the disability.
Disfigurement: NY pays WC benefits for serious facial, head, neck, or chest disfigurements. The maximum payable is $20,000.
Scheduled Loss of Use (SLU): These payments are made for a fixed period at a fixed amount, for the loss of the use of a body part (hand, leg, etc.). They are shown as "SLU" on the SROI previously C-8/8.6 paper form. They cause offset and are not the same as Section 15.3.v payments (see below).
Section 15.3.v Payments: Payments under New York State Workers' Compensation Law Section 15.3.v compensate a worker for loss of a limb. These payments are rare, and are NOT OFFSETTABLE, since the law
includes a reverse-offset provision.
Section 32 Settlement: This represents a lump sum award. Settlements of this kind usually are a final disposition of the claim for the injury in question.
Third - Party Settlement (or
Third - Party Action): In these cases, the carrier stops paying WC because another (third) party is liable. The SROI previously C-8 or EC-23 form shows when payment stopped. The form should also show when payment starts again, but it does not always do so. In addition, the carrier ordinarily places a lien on the settlement, requiring that the third party repay some or all of the WC (see DI 52105.010 on Third-Party Settlements). The carrier may also use the form to show the amount of the third-party payment being subtracted from the WC payment. When this happens, the WC payment is not being made for the period shown. Don’t assume that the WC payments resumed at the end of the period. Instead, look for documentation that says specifically when the WC payment resumed.
NOTE: After a third-party settlement, New York WC documents often use the term "waiver of reimbursement." Since there is usually a cost-sharing arrangement involved in the agreement of which the WC lien is a part, do not accept the term "waiver of reimbursement" on its face. GET A COPY OF THE SETTLEMENT ITSELF OR AN OFFICIAL BREAKDOWN OF ITS TERMS. This is needed to determine if the carrier is actually waiving the lien or simply paying its portion of the third-party settlement costs.
When a WC claimant has settled a third-party action, the WC carrier may be required to pay a portion of any third-party litigation expenses. If the value of the future benefits cannot be determined at the time of the settlement, the carrier may be required to periodically pay its equitable share of attorney fees and costs incurred by the claimant in securing the third-party settlement. These payments are referred to a Burns Payments. Burns payments made by the carrier during the carrier's "holiday" period are viewed as equitable reimbursement for the carrier's proportionate share of the claimant's third-party litigation expenses, which the carrier is required to make pursuant to WCL § 29(1). The carrier may continue to make these Burns payments to the claimant until the gross amount of the compensation awarded equals the claimant's net recovery. At that time, WC payments may resume.
Burns payments are often confused with periodic WC payments. These payments are not WC payments, nor are they paid in lieu of WC. Therefore, they are not subject to the offset provisions of the Social Security Act.
Contact the worker or the worker's attorney and request a copy of the settlement.
Do not accept the attorney's allegation that the court case of Burns v. Varriale is cited.
If the actual settlement is not available, contact the WC carrier or insurance carrier to obtain the proof.
Documentation of a telephone call to the carrier is sufficient proof of Burns involvement.
Read the settlement to determine if the court case of Burns v.
Varriale is cited.
Post a Special Message to the MBR citing this procedure and identifying the continuing payments as Burns payments.
If it is determined that the case is not a Burns payment, be sure to develop for reimbursement of WC payments made and account for the reimbursement in accordance with established procedure.
Payments made under the VFBL of New York are WC. The VFBL benefits correspond to the maximum benefit paid under the WC law. Since these VFBL benefits are not under the State WC statute, knowledge of such benefits would probably not be elicited from the WC question on the disability application. Also, since these people are volunteer firefighters, the last employer shown would not provide a lead to this benefit. Be alert to the possibility of VFBL benefits when asking the worker about the nature and history of the disability.
The World Trade Center Volunteer Fund (WTCVF or Volunteer Fund) is money appropriated by the Federal government to the New York State Workers’ Compensation Uninsured Employers’ Fund for the claims of volunteers who lost wages because they were injured or disabled during the World Trade Center rescue, recovery, or clean-up between 09/11/2001 and 09/12/2002. Article 8-A of the New York State Worker’s Compensation Law provides that volunteers who became disabled as a result of their efforts are eligible to file a claim for WC benefits EVEN THOUGH THE STATUTORY TIME TO FILE HAS PASSED. Although volunteers are usually not “employees” for the purposes of WC benefits, the Uninsured Employers’ Fund is deemed the employer for purposes of administering and paying claims to these volunteers, and the benefits are made by the N.Y.S. Workers’ Compensation Board. Benefits paid through the WTCVF are
workers’ compensation benefits and ARE subject to offset.
Section 207 of New York's General Municipal Law provides for the payment of full salary to certain salaried firefighters and police officers injured in the line of duty. Because the salary payments are not made under the WC law and because the WC is not paid directly to the injured worker, Section 207 payments are NOT
OFFSETTABLE. For information on WC payments made to employers see DI
Verify the exact period for which the worker received Section 207 (see DI
52145.001 for acceptable evidence). If the verification in file is over 2 years old, re-verify to determine whether Section 207 payments continue and, if not, the dates the worker actually received this WC.
Remove offset only for the period Section 207 payments were received.
Advise the affected worker that offset is not being imposed because the payments are under Section 207.
Instruct the worker to notify us if he begins to receive regular WC.
Supplemental benefits are payable to workers receiving total permanent disability based on injury dates before 01/01/1979. They are not available to workers with injury dates of 01/01/1979 or later.
The worker must have filed for supplemental WC benefits to receive them. The State of New York reduced its supplemental WC benefits by 50 percent of any Federal disability benefits received. Since the supplemental payment is considered an integral part of the basic WC benefit, no part of the whole WC benefit was
cause for offset of DIB before 07/01/1990.
The effective date of supplemental WC benefits was determined by the WC injury date, as shown in the chart below:
Supplemental Benefit Effective Date
Prior to 07/01/1960
06/16/1968 (no offset until 07/1990)
07/01/1960 – 06/30/1965
07/01/1973 (no offset until 07/1990)
07/01/1965 – 06/30/1970
07/01/1975 (no offset until 07/1990)
07/01/1970 – 06/30/1974
01/01/1978 (no offset until 07/1990)
07/01/1974 – 12/31/1978
01/01/1990 (no offset until 07/1990)
No supplemental benefits are due (apply offset)
Verify that the worker is entitled to the supplemental benefit.
Remove offset effective with the date of imposition (but no earlier than the above effective dates) through 06/30/1990.
Code the case as reverse jurisdiction (RJ) for that period.
NOTE: The New York law was changed effective 07/01/1990. As of that date
New York does NOT offset supplemental WC payments, and RJ no longer applies.
Therefore, even if supplemental benefits are still being paid, the WC is
subject to offset effective 07/1990 on.
Apportionment refers to the percentage of responsibility for the disability. In New York State, it can mean that there is more than one injury for which WC claims have been filed. In that case, any payments awarded are split among the cases in accordance with the percentage of disability caused by each injury. If apportionment is mentioned on the EC-23, normally the WCB case number(s) of the other case(s) will be indicated on the EC-23. Check for additional WC claims for the injured worker if apportionment is mentioned.
When more than one carrier is involved in a WC claim, you may see SROI’s previously C-8's that appear to contradict each other. For example, if liability is split between two carriers, the SROI from carrier "A" may show the total amount of the award (even though carrier "A" is only paying 75 percent of that amount), while the SROI from carrier "B" shows only the amount that carrier "B" is paying (in this example, 25 percent). Or, a SROI from one carrier may show a payment amount of zero, simply because another carrier is making the payments. Sometimes the total payments being made by ALL the carriers add up to less than 100 percent of the awarded amount. In that case, offset is based only on the amount actually being paid to the beneficiary.
Apportionment can also mean that there was a non-work injury or disease that caused some of the disability (the non-work injury is usually referred to as ‘not causally related’). In this case, a portion of the awarded WC may not actually be paid.
For example: A worker with three claims is awarded $400 per week in WC, but 10 percent of his disability is determined to have not been work related. Liability in this case is assigned as follows: 40 percent for the first claim ($160 of the $400), 25 percent for each of the other two claims ($100 each), and 10 percent not work related ($40). The number holder’s weekly workers compensation benefit in this case would be paid at $360 per week, not $400 per week.
WC forms sometimes show the total benefit being awarded, while at other times they only show the portion of the payment assigned to that WC case number. It is not always apparent what the correct rate for offset is from one form alone. Multiple WC forms must be checked and compared.
NY does not give COLAs on its WC.
Exclude attorney expenses per DI 52150.050I. “Applying excludable expenses to the offset computation.”
NY does not offset WC paid to disabled workers for receipt of RIB.
Claims must be filed within 2 years of the accident, or within 2 years after the worker knew, or should have known, that the injury or illness was related to employment.
Proof of WC should first be requested from the worker (SROI previously C-8 or C23). New York requires the worker’s written consent before WC information will be sent to us.
Once you are certain the WC evidence is not already in file, check the Workers' Compensation (WC) Resource Page in DI 52140.020 since NY is a State that provides SSA with the access to its online records. The value of online records can vary from State to State and some development may still be required. However, the sites available usually provide contact information for the employer, WC carrier or the WC attorney, which can jump-start the development process. Also included in the WC resource intranet site is a list of individuals in the PC with online access to those individual State records.
NY WC cases can be extremely complicated. Therefore, it is imperative that we
maintain detailed, accurate information regarding how the WC used for offset was
calculated. Supporting documents (such as SROI’s previously C-8's) MUST be retained
in electronic format (see DI 52145.015).
New York cases are assigned 8-digit WCB case numbers. The case number format:
DYYSSSSS: ‘D’ is the code for WC district office, ‘YY’ is the year the case was indexed, and ‘SSSSS’ is a 5-digit sequence number beginning with 00001 on January 1. However, for volunteer firefighters, the case number would start with F and have only a 4-digit sequence number (FDYYSSSS); and for volunteer ambulance workers, it would start with ‘A’ (ADYYSSSS).
There are cases where we need to see material that’s been ‘archived’ in NY’s online records. In this case, you can write to the State to request that they restore the file.
Write to them at:
New York State Workers' Compensation Board
PO Box 5205
Binghamton NY 13902-5205
Be sure to include the injured worker's name, address, SSN, and WC case number (the name of the employer and the carrier also help) and ask them to “restore” the workers’ compensation information (be sure to use the term
The WCB generally responds in about 3 weeks. The documents are either mailed to us, or restored electronically to the WCB website. If your diary has matured, first check the WCB website to see if the documents were loaded; if they weren't, check to see if they were mailed as paper and/or scanned into the Paperless Processing System, the CEF, or NDRED.
SIF is a WC insurance carrier, administered by the State. SIF serves the same function as the private insurance carriers; it is NOT the same as the NY Workers' Compensation Board.
Often, claimants submit correspondence from SIF that shows only the SIF claim number. The SIF claim number (not the WCB case number) can be found in the "Carrier Case Number" box on the SROI previously C-8, C-23, or similar forms, and is often the only claim number shown on correspondence or check stubs from SIF. The SIF claim number consists of eleven digits, but the last three digits only identify the SIF office code. Even when the SIF claim number is shown with only 8 digits, it will be a different number than the NY WCB claim number for the same case.
Using the link in ‘Exhibits’ below, you will reach the NY SIF web site. If you input the NY SIF claim number, the website provides the name, phone number, fax number, and email address of the Case Manager assigned to the case. To use the website, input the first 8 digits of the carrier claim number. The Case Manager can assist in clarifying the SIF payments, and frequently can supply the WCB claim number if we don't already have it.
NOTE: SSA policy prohibits sending personally identifiable information (PII) to external entities via email. Therefore, even though the SIF website gives an email address for the Case Manager, you may not use email to transmit SSNs or other PII.
A few carriers are self-insured, and do not report workers’ compensation benefits to the NY WC Board. An example would be the Electrical Workers Union. For self-insured carriers, technicians will need to contact the carriers directly for proof of workers’ compensation.
Employers sometimes make advance payments of compensation to an employee during periods of disability. In these situations, the employer is entitled to reimbursement of the advanced payments (see DI 52110.010 “WC/PDB Payments Made to Employer”). SROI’s often show that a certain portion of the award was used to reimburse the employer. Follow the instruction in DI 52120.175H.1.- 2. in this subsection regarding reimbursements to the employer, which is a Change of Position (COP) from Basic POMS instructions published 09/29/2008. The COP is effective February 04, 2009. Determinations made prior to the COP (i.e., in which offset was imposed against the advanced compensation payments reimbursed to the employer), can be re-opened using the COP guidelines in GN 04001.100.
If the WC/PDB carrier (payer) directly reimburses the employer, the reimbursed amounts are not offset.
If the employer files a waiver of reimbursement, the WC/PDB carrier may make payments to the employee even though advance payments were also paid to the employee. In these situations:
If the employee reimburses the advance payments back to the employer, the reimbursed amounts are not offset.
If the employee does not reimburse the advance payments back to the employer, or reimburses part, but not all of the advance payments, offset applies to the amount(s) not reimbursed.
NOTE: Do not confuse an employer’s advance payments of compensation with WC advances. WC advances are made by the WC/PDB carrier, not the employer.
The following chart lists the common NY WC forms.
Effective April 23, 2014, the NY WC Board announced a mandate to utilize eClaims which mandates First Report of Injury (FROI) and Secondary Report of Injury (SROI) for all claims administrators. To enforce the mandate, Forms C-2, C-669, C-7, C-8/8.6, VAW-2 and VF-2) have been replaced by their equivalent FROI/SROI transactions and will no longer be accepted by the Board.
Date shown on form, and other remarks
FROI electronic version (previously form C-2, C-2a),
These are an indication that some WC action is pending. They are not reliable for rates.
Interim payment of WC. This should be followed (and superseded) by a final decision (SROI (formerly C-8) and/or EC-23). This is an obsolete form; the current version is the FROI.
SROI electronic version (previously form
Amounts actually paid by insurer (carrier). Use this form to get payment amounts.
The SROI is always issued by the carrier. In hearing cases, the carrier must issue a new SROI within 16 days of the hearing decision. SROI’s are also issued by the carrier whenever there is a change in the amount or schedule of WC payments.
Note that attorney fees shown on these forms can be cumulative (but sometimes aren't) - be careful with arithmetic. Attorney fee expenses are to be allocated from the accompanying EC-23 (not the SROI or the C-8).
Amounts "previously paid to claimant" are not excludable - they should be accounted for by a previous SROI.
NOTE: Technicians should be careful in evaluating amounts paid to claimant as listed on SROI. Since the SROI is cumulative, the amount represented may represent varying rates paid at different times. Technicians may need to contact the carrier to verify what rate was paid for a respective time period.
Payments may continue after the decision, at the rate shown. This notation only means that there are no further proceedings expected on the claim at the moment. We frequently see cases with this annotation that have subsequent appeals or changes in WC amounts.
Look for the annotation "CCP" = carrier to continue payments.
Always look at the corresponding hearing documents (e.g., EC-23) - if they exist - to clarify excludable expenses.
Reimbursement to the employer – follow instructions in DI 52120.175H.
Judges' notes. Use these only if information on the EC-23 needs clarification.
Hearing decision on scheduled loss.
Interim action. This should be followed (and superseded) by a final action.
The EC-23 is issued as a result of a WCB hearing. It specifies the terms of the decision, allowable attorney fees, other excludable expenses, and the period of time the expenses represent. Unless directed by the WCB; expenses are allocated to the period specified as per DI 52150.050H.1.a. If the EC-23 specifies that the fees are to be paid at a particular interval (i.e. $10.00 per pay period), then the expenses start as of the date of the EC-23 (C-23) decision.
There is usually a SROI previously C-8 or 8.6 to correspond with the 23. An EC-23 hearing decision may be appealed by either party, and may not be effectuated until the appeal is resolved. The subsequent decision will supersede the prior EC-23. The absence of a corresponding SROI may be an indication that the hearing decision is being appealed.
Technicians may use the EC-23 as evidence of expenses paid and attribute the expenses to the specified time period. If you believe that an expense was not paid until a later point in time, the technician may contact the carrier to validate when the expense was actually paid.
Lump sum settlement information. This can be "approved" (we can use it) or "proposed" (we need the later approved one). Typically a C-23, C-8, or SROI is issued after the lump sum is approved. If approval is questionable, technicians should look for the accompanying C-23, C-8, SROI, or contact the carrier directly.
Approval of the lump sum settlement information.
This form is used when there is no carrier to make the payments; payments are made directly by the State's Uninsured Employers' Fund. There is no SROI previously C8 issued in these kinds of cases.
If more information is needed, you must write to:
NYS WCB Finance Unit 20 Park Street Albany NY 12207
This is an indication that an attorney was involved. Fee amounts are not always accurate; look on other documents for excludable fees.
This is equivalent to a SROI previously C-8, but is the result of "alternative dispute resolution" (arbitration).
Proposed decision. This may have information that you need to consider when the final decision is issued.
This form is not a determination; it's a proposed decision that has not been finalized. In cases where you see an ECB-2, look for a subsequent EC-23 and SROI previously C-8.
Notice of action on Proposed decision.
Memorandum of Board Panel Decision. This is similar to our Appeals Council review. It refers to (and possibly revises) a prior EC-23. The attorney fee expenses relate to the date of the EBRB-1, not to the prior EC-23.
The following chart explains the terms and abbreviations often used in NY WC forms and documents.
accident, notice, and causal relation
fee for appeal to WC board
average weekly wage based on an average of the injured worker’s earnings for an entire year prior to the injury.
carrier continue payments
no further action will be taken on the claim and that no formal hearing will be held unless the injured worker or any party of interest specifically requests it.
claimant; the injured worker
reimburse disability benefits carrier (NYS 26 week PDB)
disability benefits lien (NYS 26 week PDB)
date third-party settlement proration credit ends
disability exceeds schedule
disability less than waiting period
First report of injury
held in abeyance (decision postponed until a later date)
third-party settlement proration period
INCOME EXECUTION ORDER
independent medical exam
modify prior award
no compensable lost time
no further causally related disability
no lost time
no medical evidence
notice of decision
occupational disease, notice, and causal relation
PAID IN FULL
all retro benefits paid; usually does not mean payments have stopped
partial permanent disability
protracted healing period with additional weeks of WC
partial temporary disability; SSA normally refers to this type of WC as TP, or temporary partial.
paid while out by employer
RATE PER WEEK
Rate per week for 100% disability is calculated at two-thirds of average weekly wage not to exceed the maximum rate established by law at the time of the accident.
reduced earnings, i.e., eligible to return to work with restrictions with WC payments for 2/3 the difference between prior AWW and new wage.
return to work
schedule loss of use
subsequent report of injury
total permanent disability; SSA normally refers to this type of WC as PT, or permanent total.
total temporary disability
Section of NY WC law regarding special funds liability and apportionment
New York forms: http://www.wcb.ny.gov/
New York State Glossary of Workers’ Compensation Terms: http://www.wcb.ny.gov/content/main/TheBoard/glossary.jsp
New York State weekly maximum WC rates: http://www.wcb.ny.gov/content/main/onthejob/wcBenefits.jsp
NY State WC Board: http://www.wcb.ny.gov/
NY WC Laws and Regulations: http://www.wcb.ny.gov/content/main/wclaws/newlaws.jsp
NY SIF: https://www.nysif.com/sifivrweb/cmlookup.aspx
Social Security Ruling 82-4 – Payments under the Volunteer Firemen’s Benefit Law of the State of New York click
PR 02505.035 - Precedent information on World Trade Center Volunteer Fund Benefits